Citation Nr: 0218025
Decision Date: 12/12/02 Archive Date: 12/18/02
DOCKET NO. 02-09 938 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Muskogee, Oklahoma
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for residuals of a
left foot fracture with non-union of the scaphoid, and, if
so, whether the reopened claim should be granted.
(The issue of entitlement to service connection, to
include on a secondary basis, for right foot disability
will be the subject of a later decision by the Board of
Veterans' Appeals (Board).)
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Counsel
INTRODUCTION
The veteran had active military service from February 12,
1943, to April 14, 1943.
This matter comes before the Board on appeal of a
September 2001 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Muskogee,
Oklahoma.
The Board initially notes that the RO, in a September 2001
rating decision, reconsidered the veteran's previously
denied claims for service connection for hearing loss and
tinnitus pursuant to § 7(b) of the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114
Stat. 2096 (2000). The veteran was issued a statement of
the case with respect to those two issues in May 2002, but
in his VA Form 9 of June 2002, the veteran specifically
limited his appeal to the issues of entitlement to service
connection for residuals of a left foot fracture with non-
union of the scaphoid and for right foot disability, and
no further communication from the veteran with respect to
hearing loss or tinnitus has been received following the
statement of the case. The Board notes that while the
veteran's representative, in October 2002, listed the
hearing loss and tinnitus issues as on appeal, the
representative noted that the identified issues were taken
from the September 2001 rating decision, and the
representative did not, in any event, present any specific
argument concerning the hearing loss or tinnitus issues.
In light of the above, the Board concludes that the
veteran is not seeking appellate review of the September
2001 rating decision to the extent that the referenced
rating decision denied entitlement to service connection
for hearing loss and tinnitus.
The Board also notes that while the veteran, on his VA
Form 9 of June 2002, requested a hearing before a
traveling member of the Board, he withdrew his request in
an August 2002 statement.
The Board lastly notes that the veteran submitted directly
to the Board in November 2002 additional copies of January
2001 and January 2002 statements by his private
physicians. Other copies of the referenced statements
were on file before the case was certified to the Board
and have already been considered by the RO.
As will be discussed in further detail below, the issue of
entitlement to service connection, to include on a
secondary basis, for right foot disability has been
developed for appellate consideration. The Board is
currently undertaking additional development on that issue
pursuant to authority granted by 67 Fed. Reg. 3099, 3104
(Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2)
(2002)). When the development actions are completed, the
Board will provide notice of the development as required
by Rule of Practice 903. See 67 Fed. Reg. 3099, 3105
(Jan. 23, 2002) (codified at 38 C.F.R. § 20.903 (2002)).
After giving the notice and reviewing the veteran's
response to the notice, the Board will prepare a separate
decision addressing this issue.
FINDINGS OF FACT
1. An unappealed rating decision of May 1943 denied
entitlement to service connection for residuals of a left
foot fracture with non-union of the scaphoid.
2. An unappealed February 1944 rating decision continued
the denial of service connection for residuals of a left
foot fracture with non-union of the scaphoid.
3. Evidence received since the February 1944 rating
decision is not duplicative or cumulative of evidence
previously of record and is, either by itself or in
connection with evidence previously assembled, so
significant that it must be considered in order to fairly
decide the merits of the claim.
4. The veteran's left foot fracture with non-union of the
scaphoid clearly and unmistakably existed prior to his
entry into service.
5. The residuals of the veteran's left foot fracture with
non-union of the scaphoid chronically worsened as a result
of military service.
CONCLUSIONS OF LAW
1. New and material evidence has been received to reopen
the veteran's claim for service connection for residuals
of a left foot fracture with non-union of the scaphoid.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (2001).
2. The veteran's left foot fracture with non-union of the
scaphoid were aggravated during the veteran's active
military service. 38 U.S.C.A. § 1110 (West Supp. 2002);
38 C.F.R. §§ 3.303, 3.304, 3.306 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board initially notes that during the pendency of the
instant appeal, the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000)
(codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West Supp. 2002)) was enacted.
The VCAA appears to have left intact the requirement that
a veteran must first present new and material evidence in
order to reopen a previously and finally denied claim
under 38 U.S.C.A. § 5108 before the Board may determine
whether the duty to assist is fulfilled and proceed to
evaluate the merits of that claim. It is specifically
noted that nothing in the Act shall be construed to
require the Secretary to reopen a claim that has been
disallowed except when new and material evidence is
presented or secured, as described in 38 U.S.C.A. § 5108.
See 38 U.S.C.A. § 5103A(f).
The Board also notes that on August 29, 2001, VA
promulgated final regulations to implement the provisions
of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159
and 3.326(a) (2002)). Except for revisions pertaining to
claims to reopen based on the submission of new and
material evidence, as in this case, the final regulations
are effective November 9, 2000, and "merely implement the
VCAA and do not provide any rights other than those
provided by the VCAA." See 66 Fed. Reg. at 45,629. With
respect to claims to reopen based on the submission of new
and material evidence, the revisions provide for a limited
duty on the part of VA to assist the veteran in obtaining
evidence in support of his claim, but only for those
claims filed on or after August 29, 2001; the veteran's
claim was filed in December 1999.
Generally, a claim which has been denied in an unappealed
rating decision may not thereafter be reopened and
allowed. 38 U.S.C.A. § 7105(c) (West 1991). The
exception to this rule is 38 U.S.C.A. § 5108, which
provides that if new and material evidence is presented or
secured with respect to a claim which has been disallowed,
the Secretary shall reopen the claim and review the former
disposition of the claim.
The Board must consider the question of whether new and
material evidence has been received because it goes to the
Board's jurisdiction to reach the underlying claim and
adjudicate the claim de novo. See Jackson v. Principi,
265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d
1380 (Fed. Cir. 1996). If the Board finds that no such
evidence has been offered, that is where the analysis must
end, and what the RO may have determined in that regard is
irrelevant. Barnett, supra. Further analysis, beyond
consideration of whether the evidence received is new and
material, is neither required nor permitted. Id. at 1384.
See also Butler v. Brown, 9 Vet. App. 167, 171 (1996).
In September 1998, the United States Court of Appeals for
the Federal Circuit issued an opinion which overturned the
test for materiality established by the United States
Court of Appeals for Veterans Claims (Court) in Colvin v.
Derwinski, 1 Vet. App. 171, 174 (1991) (the so-called
"change in outcome" test). See Hodge v. West, 155 F.3d
1356 (Fed. Cir. 1998). The Federal Circuit in Hodge
mandated that materiality be determined solely in
accordance with the definition provided in 38 C.F.R.
§ 3.156(a). (The Board notes that 38 C.F.R. § 3.156(a)
was recently amended in August 2001. However, that
amendment is applicable only to claims filed on or after
August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29,
2001)).
Under 38 C.F.R. § 3.156(a) (2001), evidence is considered
"new" if it was not of record at the time of the last
final disallowance of the claim and if it is not merely
cumulative or redundant of other evidence that was then of
record. See also Struck v. Brown, 9 Vet. App. 145, 151
(1996); Blackburn v. Brown, 8 Vet. App. 97, 102 (1995);
Cox v. Brown, 5 Vet. App. 95, 98 (1993). "Material"
evidence is evidence which bears directly and
substantially upon the specific matter under
consideration, and which by itself or in connection with
evidence previously assembled is so significant that it
must be considered in order to fairly decide the merits of
the claim. See 38 C.F.R. § 3.156(a); Hodge, supra. In
determining whether evidence is new and material, the
"credibility of the evidence is to be presumed." Justus
v. Principi, 3 Vet. App. 510, 513 (1992).
A May 1943 rating decision denied service connection for
residuals of a left foot fracture with non-union of the
scaphoid. A February 1944 rating decision reconsidered
the veteran's claim under the provisions of Pub. L. No.
144, but continued the denial of service connection; the
veteran was notified of the above rating decisions as well
as of his appellate rights with respect thereto, but he
did not appeal either decision. Since the May 1943 and
February 1944 rating decisions were not appealed by the
veteran, those decisions are final, and the veteran does
not contend otherwise. See 38 U.S.C.A. § 7105 (West
1991); 38 C.F.R. §§ 20.200, 20.1103 (2002).
As a result, service connection for residuals of a left
foot fracture with non-union of the scaphoid may now be
considered on the merits only if new and material evidence
has been received since the time of the prior
adjudications. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156 (2001); Manio v. Derwinski, 1 Vet. App. 140, 145
(1991); Evans v. Brown, 9 Vet. App. 273 (1996).
The evidence on file at the time of the February 1944
rating decision included service medical records which
show that the report of the veteran's induction
examination was negative for any pertinent abnormalities;
examination of his feet was described as normal, and
examination for musculoskeletal defects was negative. The
records show that the veteran was thereafter admitted for
left foot complaints affecting his ability to walk and
run, at which time he reported a history of sustaining a
laceration wound to the dorsum of his left foot from a
mower blade when he was approximately nine years of age.
The examining physician noted that the veteran's
lacerating wound extended from just below the medial
malleolus across the dorsum of the foot to just anterior
of the external malleolus, and involved the ligaments and
some of the extensor tendons. Following a period of
observation, the veteran was diagnosed with fracture, non-
union of, scaphoid left; accidentally incurred by a mowing
machine blade in 1934. His condition was noted as
unimproved at the conclusion of the period of observation.
His treating physicians concluded that the disability had
existed prior to service, and recommended the veteran's
processing for a Certificate of Disability for Discharge
(CDD).
The evidence on file at the time of the February 1944
rating decision also included the veteran's Certificate of
Disability for Discharge, which shows that he was
recommended for discharge on account of his left foot
fracture with non-union of the scaphoid, and that the
referenced disability was considered to have existed prior
to service without aggravation in or by service. The CDD
indicates that the left foot condition incapacitated the
veteran in that he was unable to perform the drills,
marches and other duties required of a soldier because of
constant pain aggravated by marching, drilling and hiking,
as well as by the presence of a tender scar on the dorsum
of the left foot.
Pertinent evidence added to the record since the February
1944 rating decision includes an October 1948 Application
for Hospital Treatment or Domiciliary Care, as well as a
January 2001 statement by D.E.K., D.O. The evidence added
to the record also includes March 2001 and May 2001
statements by the veteran's sister and an April 2001
statement by D.W., an acquaintance of the veteran. The
added evidence also includes a January 2002 statement by
B.H., M.D., as well as several statements by the veteran,
including those made at an informal hearing at the RO in
August 2002.
The Application for Hospital Treatment or Domiciliary Care
documents complaints of left foot pain and left ankle
problems. The veteran reported a history of hurting his
ankle at age 9, but experiencing no further trouble until
service. Physical examination showed a scar extending
from the lateral malleolus across the dorsum of the foot
to the medial edge.
In his January 2001 statement, Dr. D.E.K. indicates that
he recently saw the veteran for bilateral painful feet.
He noted that, based on history supplied by the veteran,
he believed that the veteran's orthopedic conditions
existed prior to service, and the strenuous physical
demands of service did aggravate the orthopedic condition
of the non-union of the scaphoid on the left. He noted
that over time and with activities of daily living, the
aggravated conditions had become degenerative in nature.
In her March 2001 and May 2001 statements, the veteran's
sister indicates that she remembered the incident in which
the veteran's left foot was cut by a mower when he was
almost nine years of age. She stated that the veteran's
physicians told her that the veteran was to avoid running
or jumping. She indicated that the veteran's left foot
had been doing well until service, that the veteran had
experienced foot problems since service, and that the
veteran had been told by physicians after service that his
army training had caused a bone to be jammed into his
ankle.
In her statement, D.W. indicates that she remembered the
incident in which the veteran almost had his left foot
severed.
In his January 2002 statement, Dr. B.H. indicates that he
had recently seen the veteran, who by history had
sustained a near amputation of his left foot at the age of
nine. Dr. B.H. noted that the veteran had undergone
salvage of the foot with prolonged casting and had
developed profound fusions across the entire mid foot
which had persisted into his adult life. He also noted
that the veteran had been warned not to participate in
vigorous activity, but that he nevertheless underwent
rigorous training and activities in service. Dr. B.H.
indicated that the veteran had had a marked progression of
symptoms as would be expected to occur as a result of the
pre-existing near amputation of the foot, subsequent
fusions and followed by the stresses of his military
activity. Dr. B.H. concluded that the veteran's military
activity would and did aggravate his pre-existing left
foot condition such that he had had increased pain over
the course of his life. Dr. B.H. lastly clarified that he
considered the veteran's left foot condition to have been
aggravated by service, although he believed that it
certainly pre-existed service.
In his several statements, the veteran indicated that he
had injured his left foot in a farming accident before
service, for which he was hospitalized for several days
and thereafter warned against running or jumping. He
indicated that his left foot was asymptomatic before
service, but that he had experienced left foot problems in
service and fell during maneuvers, sustaining left foot
injury. He indicated that he had experienced left foot
problems since service.
The evidence previously of record notably contained no
opinion suggesting that the veteran's pre-existing left
foot disability had chronically worsened in service. As
described above, evidence submitted since the February
1944 rating decision includes the January 2001 and January
2002 opinions from the veteran's treating private
physicians which conclude that the residuals of the
veteran's non-united fracture of the left scaphoid, while
pre-existing service, were nevertheless aggravated by his
activities in service. This evidence is clearly new and
material, and the veteran's claim is therefore reopened.
38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). See also
Hodge v. West, 155 F.3d 1356 (1998).
This does not end the Board's inquiry, however. Service
connection may be granted for disability resulting from
disease or injury incurred or aggravated during active
service. 38 U.S.C.A. § 1110 (West Supp. 2002); 38 C.F.R.
§ 3.303 (2002). Every veteran of wartime service shall be
taken to have been in sound condition when examined,
accepted, and enrolled for service, except as to defects,
infirmities, or disorders noted at the time of the
examination, acceptance, and enrollment, or where clear
and unmistakable evidence demonstrates that the injury or
disease existed before acceptance and enrollment and was
not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137
(West 1991); 38 C.F.R. § 3.304(b) (2002).
A preexisting injury or disease will be considered to have
been aggravated by active service where there is an
increase in disability during such service, unless there
is a specific finding that the increase in disability is
due to the natural progress of the disease. 38 U.S.C.A.
1153 (West 1991); 38 C.F.R. 3.306(a) (2002). Aggravation
may not be conceded where the disability underwent no
increase in severity during service on the basis of all
the evidence of record pertaining to the manifestations of
the disability prior to, during, and subsequent to
service. 38 U.S.C.A. 1153 (West 1991); 38 C.F.R. 3.304,
3.306(b) (2002).
While the veteran's February 1943 induction examination is
negative for any suggestion of abnormalities affecting his
left foot, the service records show that by March 1943 he
was admitted for observation of left foot complaints and
had reported a history of sustaining a severe left foot
laceration many years prior to service. Physical
examination confirmed the presence of a scar over the
dorsum of the left foot and the veteran's CDD reflects
that his service physicians believed that his left foot
disability had existed prior to service. The veteran has
since maintained that he sustained serious injury to his
left foot prior to service, and has submitted statements
from two witnesses to the pre-service incident to confirm
that he had injured his left foot to the point where he
had been warned against certain activities. In their
respective January 2001 and January 2002 statements, Drs.
B.E.K. and B.H. concluded that the veteran's current left
foot disability clearly pre-existed service.
In light of the above evidence, the Board concludes that
the veteran's left foot fracture with non-union of the
scaphoid clearly and unmistakably existed prior to
service. The presumption of soundness is therefore
rebutted by clear and unmistakable evidence. See 38
U.S.C.A. 1111; 38 C.F.R. 3.304(b); Crowe v. Brown, 7 Vet.
App. 238, 245 (1994).
With respect to whether the veteran's residuals of a left
foot fracture with non-union of the scaphoid increased in
severity during service, as noted previously, no left foot
problems were identified at service entrance, but the
veteran soon thereafter presented with complaints of left
foot problems exacerbated by his military duties. The
veteran was placed under a period of observation, but his
condition did not improve, and he was ultimately found to
be incapacitated with respect to his ability to march or
drill. While the veteran's CDD indicates that his left
foot condition had not been aggravated by or in service,
the Board points out that Drs. B.E.K. and B.H. concluded
that the veteran's disability had indeed worsened from the
rigorous activities in which the veteran participated.
The Board notes that the above opinions are supported to
some extent by the March and May 2001 statements of the
veteran's sister who indicated that the veteran's left
foot symptoms were essentially quiescent prior to service,
but increasingly present following his discharge from
service.
In light of the above evidence showing left foot
complaints in service serious enough to warrant discharge
of the veteran with a CDD, as well as the January 2001 and
January 2002 medical opinions supportive of the veteran's
claim, the Board finds that the evidence supporting the
claim is at least in equipoise with that against the
claim. Accordingly, service connection is in order for
residuals of a left foot fracture with non-union of the
scaphoid. Gilbert v. Derwinski, 1 Vet. App. 49, 54
(1990).
In deciding this claim on the merits, the Board has
considered the applicability of the Veterans Claims
Assistance Act of 2000, as well as the implementing
regulations of August 29, 2001. The Board finds that the
VCAA's duty-to-notify provision has been fulfilled as
evidenced by the September 2001 notice to the veteran
apprising him of the September 2001 rating decision, as
well as by the statement of the case issued in May 2002.
Moreover, the record reflects that all evidence required
to fairly adjudicate the instant claim has been obtained.
In any event, in light of the disposition of the veteran's
claim as described above, the Board finds that the veteran
will not be prejudiced by any failure on the part of VA to
undertake additional notice or assistance duties under the
VCAA. See Bernard v. Brown, 4 Vet. App. 384, 392-94
(1993).
ORDER
New and material evidence having been submitted, reopening
of the claim for service connection for residuals of a
left foot fracture with non-union of the scaphoid is
granted.
Entitlement to service connection for residuals of a left
foot fracture with non-union of the scaphoid is granted.
MARK F. HALSEY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).
Meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal
to the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required
to file a copy of your Notice of Appeal with VA's
General Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.